Wills Law

1. Citation. This Law may be cited as the Wills Law.

2. Interpretation. In this Law - "personal estate" includes leasehold estate and other chattels real, monies, shares of government and other funds, securities for money (not being real estates), debts, choses in action, rights, credits, goods and all other property whatsoever which by law devolves upon the executor or administrator and any share or interest therein; [7 Will. 4 and 1 Vict., c. 26, s. 1.] "real estate" includes messuages, lands, rents and "hereditaments, whether freehold or of any other tenure and whether corporeal, incorporeal or personal and to any undivided share thereof and to any estate, right or interest (other than a chattel interest) therein; "will" includes a testament, a codicil and an appointment by will or by writing in the nature of a will in exercise of a power.

3. All property may be disposed of by will. (1) Subject to any customary law relating thereto, it shall be lawful for every person to devise, bequeath or dispose of, by his will executed in manner hereinafter required, all real estate and all personal estate which he shall be entitled to, either in law or in equity, at the time of his death and which if not so devised, bequeathed and disposed of would devolve upon the heir at law of him, or if he became entitled by descent, of his ancestor or upon his executor or administrator. [7 Will. 4 and 1 Vict., c. 26, s. 3.] (2) The power hereby given shall extend to— (a) estates pur autre vie whether there shall or shall not be any special occupant thereof and whether the same shall be freehold or of any other tenure and whether the same shall be a corporeal or an incorporeal hereditament; (b) all contingent, executory or other future interest in any real or personal estate, whether the testator may or may not be ascertained as the person or one of the persons in whom the same respectively may become vested and whether he may be entitled thereto under the instrument by which the same respectively were created or under any disposition thereof by deed or will; (c) all rights of entry for conditions broken and other right of entry; and (d) such of the same estates, interests and rights respectively and other real and personal estates as the testator may be entitled to at the time of his death, notwithstanding that he may become entitled to the same subsequently to the execution of his will.

4. Estates pur autre vie not disposed of by will. (1) If no disposition by will shall be made of any estate pur autre vie of a freehold nature the same shall be chargeable in the hands of the heir, if it shall come to him by real on of occupancy, as assets by descent, as in the case of freehold land in fee simple. [7 Will. 4 and 1 Vict., c. 26, s. 6.] (2) In case there shall be no special occupant of any estate pur autre vie, whether freehold or of any other tenure and whether a corporeal or incorporeal hereditament it shall go to the executor or administrator of the party that had the estate by virtue of the grant. (3) If the same shall come to the executor or administrator either by reason of a special occupancy or by virtue of this Law it shall be assets in his hands and shall go and be applied and distributed in the same manner as the personal estate of the testator or intestate.

5. Will of person under age invalid. No will made by any person under the age of twenty-one years shall be valid. [7 Will. 4 and 1 Vict., c. 26, s. 7.)

6. Requirements for execution of will. No will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned, that is to say it shall be signed at the foot or end thereof by the testator or by some other person in his presence and at his direction, and such signature shall, be made or acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and subscribe the will in the presence of the testator, but no form of attestation shall be necessary. [7 Will. 4 and 1 Vict., c. 26, s. 9.]

7. Position of testator’s signature. (1) Notwithstanding the provisions of the foregoing section every will shall, so far only as regards the position of the signature of the testator or of the person signing for him is therein provided, be deemed to be valid if the signature be so placed at or after, or following, or under, or beside or opposite to the end of the will that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will; [15 and 16 Vict., c. 24, ss. 1 and 2.] (2) No such will shall be affected by the circumstance— (a) that the signature shall not follow or be immediately after the foot or end of the will; or (b) that a blank space shall intervene between the concluding word of the will and the signature; or (c) that the signature shall be placed among the words of the testimonium clause or of the clause of attestation or shall follow or be after or under the clause of attestation, either with or without a blank space intervening, or shall follow or be after, or under, or beside the names or one of the names of the subscribing witnesses; or (d) that the signature shall be on a side or page or other portion of the paper or papers containing the will whereon no clause or paragraph or disposing part of the will shall be written above the signature; or (e) that there shall appear to be sufficient space on or at the bottom of the preceding side or page or other portion of the same paper on which the will is written, to contain the signature. (3) The enumeration of the above circumstances shall not restrict the generality of subsection (1) hereof. (4) No signature under this section or under any other provision of this Law shall be operative to give effect to any disposition or direction which is underneath or follows it nor shall it give effect to any disposition or direction inserted after the signature shall be made. (5) The provisions of this section shall extend and apply to every will already made where administration or probate has not already been granted or ordered by a court of competent jurisdiction in consequence of the defective execution of such will or where the property has not been possessed or enjoyed by some person or persons claiming to be entitled thereto in consequence of the defective execution of such will or the right thereto has not been decided to be in some other person or persons than the persons claiming under the will, by a court of competent jurisdiction, in consequence of the defective execution of the will.

8. Execution of appointments by will. No appointment made by will in exercise of any power shall be valid unless the same be executed in manner hereinbefore required and every will executed in such manner shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will notwithstanding it shall have been expressly required that a will made in exercise of such power should be executed with some additional or other form of execution or solemnity. [7 Will. 4 and 1 Vict., c. 26, s. 10.]

9. Provisions as to wills of soldiers, airmen and mariners. (1) Notwithstanding the foregoing provisions of this Law any soldier being in actual, military service or any member of an air force or any mariner or seaman being at sea may dispose of his personal estate as he might have done before the passing of this Law, though under the age of twenty-one years. [7 Will. 4 and 1 Vict., c. 24, s. 11. 7 and 8 Geo. 5, c. 58, s. 1, Id. s. 3.] (2) A testamentary disposition of any real estate made by a person to whom the preceding subsection applies and who dies after the passing of this Law shall, notwithstanding that the person making the disposition was at the time of making it under twenty-one years of age or that the disposition has not been made in such manner or form as was at the passing of this Law required by law, be valid in any case where the person making the disposition was of such age and the disposition has been made in such manner and form that if the disposition had been a disposition of personal estates made by such person it would have been valid.

10. Publication not requisite. Every will executed.in manner hereinbefore required shall be valid without any other publication thereof. [7 Will. 4 and 1 Vict., c. 26, s. 13.]

11. Will not void because of incompetency of attesting witness. If any person who shall attest the execution of a will shall at the time of the execution thereof or at any time afterwards be incompetent to be admitted a witness to prove the execution thereof such will shall not on that account be invalid. [7 Will. 4 and 1 Vict., c. 26, s. 14.]

12. Gifts to attesting witness or wife or husband of attesting witness void. If any person shall attest the execution of any will to whom or to whose wife or husband any beneficial devise, legacy, estate, interest, gift or appointment of or affecting any real or personal estate (other than and except charges and directions for the payment of any debt or debts) shall be thereby given or made, such devise, legacy, estate, interest, gift or appointment shall, so far only as concerns such person attesting the execution of such will or the wife or husband of such person or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admitted is a witness to prove the execution of such will or to prove the validity or. Invalidity thereof, notwithstanding, such devise, legacy, estate, interest, gift or appointment mentioned in such will. [7 Will. 4 and 1 Vict., c. 26, s. 15.]

13. Creditor attesting a will charging estate with debt. In case by any will any real or personal estate shall be charged with any debt or debts and any creditor, or the wife or husband of any creditor, whose debt is so charged, shall attest the execution of such will, such creditor notwithstanding such charge shall be admitted a witness to prove the execution of such will or to prove the validity or invalidity thereof. [7 Will. 4 and 1 Viet., c. 26, s. 16.]

14. Executor to be admitted a witness. No person shall on account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of such will or a witness to prove the validity or invalidity thereof. [7 Will. 4 and 1 Vict., c. 26, s. 17.]

15. Wills revoked by marriage. Every will made by a man or woman shall be revoked by his or her marriage (other than a marriage in accordance with customary law) except a will made in exercise of a power of appointment when the real or personal estate thereby appointed would not in default of such appointment pass to his or her heir, executor or administrator or the person entitled as his or her next of kin under any written law relating to the distribution of the estate of persons dying intestate. [7 Will. 4 and 1 Vict., c. 26, s. 18.]

16. No revocation by presumption from altered circumstances. No will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances. [7 Will. 4 and 1 Vict., c. 26, s. 19.]

17. Revocation of will otherwise than by marriage. No will or codicil or any part thereof shall be revoked otherwise than as provided by section 15, or by another will or codicil executed in the manner hereinbefore required or by some writing declaring an intention to revoke the same and executed in the manner in which a will is hereinbefore required to be executed, or by the burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same. [7 Will. 4 and 1 Vict., c. 26, s. 20.]

18. Alteration in will after execution. No obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect except insofar as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as is hereinbefore required for the execution of the will: Provided that the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witness be made in the margin or on some other part of the will opposite or near to such alteration or at the foot or end of or opposite to a memorandum referring to such alteration and written at the end or some other part of the will. [7 Will. 4 and 1 Vict., c. 26, s. 21.]

19. Revival of revoked will. No will or codicil or any part thereof which shall be in any manner revoked shall be revived otherwise than by the re-execution thereof or by a codicil executed in the manner hereinbefore required and showing an intention to revive the same, and when any will or codicil which shall be partly revoked and afterwards wholly revoked, shall be revived such revival shall not extend to so much thereof as shall have been revoked before the revocation of the whole thereof unless an intention to the contrary be shown. [7 Will. 4 and 1 Vict., c. 26, s. 22.]

20. Effect of subsequent conveyance or other act. No conveyance or other act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death. [7 Will. 4 and 1 Vict., c. 26, s. 23.]

21. Wills to speak from death of testator. Every will shall be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it and been executed immediately before the death of the testator unless a contrary intention shall appear by the will. [7 Will. 4 and 1 Viet., c. 26, s. 24.]

22. Residuary devises to include lapsed or void devises. Unless a contrary intention shall appear by the will such real estate or interest therein as shall be comprised or intended to be comprised in any devise in such will contained which shall fail or be void by reason of the death of the devisee in the lifetime of the testator or by reason of such devise being contrary to law or otherwise incapable of taking effect shall be Included in the residuary devise (if any) contained in the will. [7 Will. 4 and 1 Viet., c. 26, s. 25.]

23. General devise of land to include leasehold as well as freehold. General devise of land to include leasehold as well as freehold A devise of the land of the testator or of the land of the testator in any place or in the occupation of any person mentioned in his will or otherwise described in a general manner and any other general devise which would describe a leasehold estate if the testator had no freehold estate which could be described by it, shall be construed to include the leasehold estates of the testator, or any of them, to which such description shall extend, as well as freehold estates, unless a contrary intention shall appear by the will [7 Will. 4 and 1 Vict., c. 26, s. 27.]

24. General gift to include property under general power of appointment. A general devise of the real estate of the testator or of the real estate of the testator in any place or in the occupation of any person mentioned in his will or otherwise described in a general manner, and a bequest of the personal estate of the testator or any bequest of personal property described in a general manner shall be construed to include any real estate and any personal estate or any real estate and any personal estate to which such description shall extend (as the case may be) which he may have power to appoint in any manner he may think proper and shall operate as an execution of such power unless a contrary intention shall appear by the will. [7 Will. 4 and 1 Vict., c. 26, s. 27.]

25. Effect of devise of real estate without words of limitation. Where any real estate shall be devised to any person without any words of limitation such devise shall be construed to pass the fee simple, or other whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention shall appear by the will. [7 Will. 4 and 1 Vict., c. 26, s. 28.]

26. How words “die without issue”, or “die without leaving issue”, etc., to be construed. In any devise or bequest of real or personal estate the words “die without issue” or “die without leaving issue” or “have no issue” or any other words which may import either a want or failure of issue of any person in his lifetime or at the time of his death or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such person and not an indefinite failure of his issue, unless a contrary intention shall appear by the will: Provided that this provision shall not extend to cases where such words as aforesaid import if no issue described in a preceding gift shall be born or if there shall be no issue who shall live to attain the age or otherwise answer the description required for obtaining a vested estate by a preceding gift to such issue. [7 Will. 4 and 1 Vict., c. 26, s. 29.]

27. Devise of realty to trustee or executor. Where any real estate shall be devised to any trustee or executor such devise shall be construed to pass the fee simple or the whole estate or interest which the testator had power to dispose of by will in such real estate unless a definite term of years absolute or determinable, or an estate of freehold shall thereby be given to him expressly or by implication. [7 Will. 4 and 1 Vict., c. 26, s. 30.]

28. Gifts to children who leave issue living at testator’s death. Where any person being a child or other issue of the testator to whom any real or personal estate shall be devised or bequeathed for any estate or interest not terminable at or before the death of such person, shall die in the lifetime of the testator leaving issue and any such issue of such person shall be living at the time of the death of the testator, such devise or bequest shall not lapse but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will. [7 Will. 4 and 1 Vict., c. 26, s. 33.]